Articles Posted in US Court of Appeals for the Fifth Circuit

The Fifth Circuit denied a petition for review of petitioner's denial of asylum, withholding of removal, and protection under the Convention Against Torture (CAT). Petitioner alleged membership in three possible groups stemming from his work as a law enforcement official.
The court held that substantial evidence supported the BIA's conclusion that petitioner did not show the alleged persecution was on account of a protected ground and he was therefore not entitled to asylum or withholding of removal. In this case, even if petitioner's social groups were cognizable, he failed to show a nexus between the alleged persecution and his membership in the groups. Furthermore, the record evidence did not compel the conclusion that petitioner was eligible for CAT relief. View "Martinez Manzanares v. Barr" on Justia Law

The Fifth Circuit held that the Illegal Immigration Reform and Immigrant Responsibility Act (IIRIRA) was not impermissibly retroactive as applied to petitioner, because no adjustment-application was pending at the time of the reinstatement order, and his previous adjustment application was denied due to his failure to prosecute. The court held that petitioner's contention that his entry was lawful because he was allegedly waved through at an entry checkpoint was foreclosed by precedent. Accordingly, the court denied the petition for review. View "Terrazas-Hernandez v. Barr" on Justia Law

The Fifth Circuit denied a petition for review of the BIA's order dismissing petitioner's appeal of the denial of her motion to reopen. The court rejected petitioner's contention that she was entitled to reopen the in absentia removal order because she never received notice despite having satisfied her statutory obligation to provide an address to receive notice.
The court held that 8 U.S.C. 1229(a)(1)(F)(i)—like its predecessor, 8 U.S.C. 1252b(a)(1)(F)(i)—requires an alien who is physically in the United States and subject to removal from the United States to provide a United States address to receive notice by mail. Applying this interpretation of section 1229(a)(1)(F)(i), the court held that the BIA did not abuse its discretion in dismissing the appeal and in rejecting the argument that a Guatemalan address was sufficient. Even assuming arguendo that an alien may satisfy her obligation to provide an address under section 1229(a)(1)(F)(i) by providing a foreign address, petitioner could not prevail because there was no realistic possibility that, absent the errors, the BIA would have reached another outcome than to dismiss the appeal. View "Luna-Garcia v. Barr" on Justia Law

After appellants, each accompanied by a minor child, stated to Customs and Border Patrol (CBP) that they feared persecution in their home countries, they were arrested and charged with misdemeanor improper entry and detained in El Paso. Their children were transferred to the custody of the Office of Refugee Resettlement (ORR). In these consolidated appeals, appellants argued that they should not have been criminally prosecuted because they sought asylum, and being separated from their children rendered their convictions constitutionally infirm.
The Fifth Circuit affirmed the district court's judgment in favor of the government, holding that nothing in 8 U.S.C. 1225(b)(1)(A)(ii) prevents the government from initiating a criminal prosecution before or even during the mandated asylum process, nor have appellants shown that qualifying for asylum would be relevant to whether they improperly entered; appellants' argument that deporting them without their children amounted to cruel and unusual punishment under the Eighth Amendment failed because the four deported appellants were found inadmissible during post-conviction civil immigration proceedings, rather than criminal proceedings; the court declined to apply the outrageous government conduct doctrine in this case; appellants' claims of right of access to evidence were rejected; appellants' fair trial claim repackaged appellants' unsuccessful Brady claim and failed for the same reasons; and the government did not impermissibly burden appellants' right against self-incrimination. View "United States v. Vasquez-Hernandez" on Justia Law

The Fifth Circuit affirmed the BIA's order denying petitioner and her son's applications for asylum and withholding of removal. The court held that the BIA was not required to consider a reformulated particular social group on appeal that was never presented to the IJ. In this case, petitioners were on notice that appellate bodies like the BIA were not required to consider arguments made for the first time on appeal; petitioners were represented by counsel at each material stage of the proceedings; and the IJ gave their counsel multiple opportunities at the hearing to clarify or revise their proposed particular social group in view of his concerns about its viability. View "Cantarero-Lagos v. Barr" on Justia Law

The Fifth Circuit affirmed the district court's denial of petitioner's motion to dismiss the indictment against him for illegal reentry after conviction of a felony. Petitioner argued that 8 U.S.C. 1326(d)'s bar on collateral attacks did not attach because his 2001 removal order was void ab initio because it was based on an unconstitutionally vague statute. Petitioner had previously waived his right to appeal the removal order stemming from the 2001 felony conviction for driving while intoxicated under Texas law.
Reviewing de novo, the court rejected petitioner's argument and held that petitioner failed to exhaust the administrative remedies that were available to him. The court held that petitioner's argument upends Congress's mandate that collateral review in the course of reentry prosecutions be available only in a narrow set of circumstances. Furthermore, such an argument enlarges the Supreme Court's observation that it is precisely the unavailability of effective judicial review of the administrative determination which warrants a collateral attack at a later criminal proceeding. In this case, both administrative remedies and judicial review of the removal order were available to petitioner and he chose not to pursue them. View "United States v. Parrales-Guzman" on Justia Law

The Fifth Circuit affirmed defendant's two special conditions of supervised release: (1) that he surrender to immigration authorities until deported and (2) that he remain outside the United States until authorized to reenter. The court held that the surrender condition was consistent with the district court's intent that defendant be deported after serving his prison term. The court held that the no-entry condition did not conflict with the oral sentence because it was duplicative of the mandatory condition that defendant was prohibited from violating the law if he reentered the United States. View "United States v. Vasquez-Puente" on Justia Law

The Fifth Circuit denied a petition for review of petitioner's reinstated removal order and the BIA's denial of withholding of removal and protection under the Convention Against Torture (CAT). In regard to petitioner's collateral attack on the underlying 2004 in absentia removal order, the court held that the petition for review of the underlying removal order was not filed within 30 days and therefore the court lacked jurisdiction to consider her collateral attacks.
The court also held that substantial evidence supported the BIA's conclusion that petitioner was not entitled to withholding of removal as her own testimony shows that she was never harmed and that her fear of future harm was speculative. Furthermore, the BIA's denial of CAT protection was also supported by substantial evidence where petitioner failed to show that she would be tortured and that the Guatemalan government would acquiesce in her torture. Finally, the court held that the BIA did not abuse its discretion in denying petitioner's motion to reopen. View "Luna-Garcia De Garcia v. Barr" on Justia Law

The Fifth Circuit denied a petition for review of the BIA's order denying petitioner and his family members relief from removal. The court held that substantial evidence supported the BIA's denial of petitioner's application for asylum where, although petitioner had suffered past persecution for his religion and political opinion, DHS rebutted the presumption of future persecution by showing that the circumstances have fundamentally changed. In this case, by showing that harm based on religious views and political activism turned into mere harm based on extortion, DHS sufficiently showed that the circumstances have fundamentally changed and that petitioner and his family no longer have a well-founded fear of persecution on account of petitioner's political opinion. The court rejected petitioner's remaining claims. View "Singh v. Barr" on Justia Law

The Fifth Circuit denied a petition for review of the BIA's dismissal of petitioner's appeal of the denial of his motion to reopen his immigration proceedings. Because petitioner's in absentia proceedings occurred in 1993, the court applied the notice requirements set forth in 8 U.S.C. 1252b.
Applying the traditional tools of interpretation to section 1252b(a)(1)(F)(i), the court held that an alien must provide a U.S. address for receiving written notice regarding his deportation proceedings. In this case, petitioner failed to provide an address to the immigration court and thus the BIA did not abuse its discretion in dismissing his appeal. View "Ramos-Portillo v. Barr" on Justia Law